Ginsburg’s Reshaping of Sex Discrimination and What it Means for You

Did you know that know that employment decisions based on the assumption that men are breadwinners can be just as illegal as those that assume women are caregivers? That penalties men experience as a caregiver can be illegal under Title VII? If you’ve ever wondered what gave rise to men’s legal right to provide family caregiving and how was written—and subsequently unwritten—into law , read law professor Stephanie Bornstein’s recent publication.

In the 1970s, just as they do now, sex-based stereotypes cast men as breadwinner and women as caregivers. What was different than was that the law tended to support these stereotypes by writing sex-based distinctions in the law (e.g., federal law provided social security survivor benefits for widows regardless of their dependency on their husbands, but only for widowers who could prove prior financial dependency on their wives).

Enter Ruth Bader Ginsburg, then head of the ACLU Women’s Right’s Project.

She thought that writing sex-based stereotypes into federal law was sex discrimination in violation of equal protection under Title VII of the 1964 Civil Rights Act. In a series of sex discrimination cases in the 1970s, several using men as plaintiffs, Ginsburg challenged this violation. Bornstein discusses these cases and how Ginsburg’s arguments shaped the court’s understanding of sex discrimination.

I highlight two of those cases that challenged men’s role as caregivers.

Moritz v. C.I.R. (1973)

Charles Moritz, an unmarried full-time worker, hired a woman to care for his ailing elderly mother. At the time, federal tax law allowed dependent care expenses to be deducted by a “woman or widower …or a husband whose wife is incapacitated or is institutionalized…if the care is for the purpose of enabling the taxpayer to be gainfully employed.” Moritz was denied a caretaker tax credit because he could not prove that he would have been the one to care for his mother if he was not working. Ginsburg argued that he would have been entitled to the deduction if he was a “dutiful daughter” instead of an unmarried “dutiful son,” evidence that the law was based on an illegal sex stereotype that a single man is unqualified to care for an elderly parent. The courts agreed with Ginsburg.

Weinberger v. Wiesenfeld (1975)

Stephen Wiesenfeld was a father whose wife, the family’s primary breadwinner, died in childbirth. He wanted to work part-time to care for his son, but was denied survivor benefits that would have enabled him to do so. At the time, the law would have allowed women to collect survivor benefits. Ginsburg argued that denigrating men’s role as caregivers and devaluing women’s roles as breadwinners, which is what the law did by assuming a man would or could not care for a child after his wife’s death, was an illegal form of sex discrimination. The courts agreed with Ginsburg.

Bornstein discusses how these cases have impacted recent sex discrimination cases involving challenges to gender non-conformity at work and male on male sexual harassment (both of which can be illegal forms of sex discrimination).

Here’s what it all of this means for OOW scholars studying workplace inequality:

Women’s status at work can’t change unless men’s does. A recent Atlantic article claims women still can’t have it all (whether they should be happy about this or not is another story) . Author Ann-Marie Slaughter only briefly mentions men’s role in caregiving and encourages women “to frame work-family balance in terms of the broader social and economic issues that affect both women and men.” This reframing must happen not only by women, but at work and in the courts if change at work is to happen.

The law matters. Without gender neutral application of sex discrimination protections, it is nearly impossible to achieve gender equity at work.

Legal advocates dedicated to changing the system matter, too. Almost singled handedly, Ruth Bader Ginsburg rewrote the rules. More of us should share our research with lawyers, in workshops like those sponsored by Cornell’s ILR School’s Labor and Employment Law Program. See past events that have brought together social scientists and veteran and practicing lawyers.

It’s important to study case law. Sociologists already do this, but more of us should pay attention to employment discrimination lawsuits. They offer a rich source of data, most of it easily accessible, to analyze to understand present-day inequalities.

Although Father’s Day has passed for this year, it seems fitting that caregiving men owe credit to Ruth Bader Ginsburg’s actions in the 1970s. You’ve got almost a year to figure out if it the t-shirt shown here comes in men’s sizes…